Three Terms of the Bush Court

If the next president appoints another conservative Supreme Court justice, established court precedents will fall, one by one.

As President George W. Bush prepares to leave the White House, the Supreme Court he reshaped through the appointment of Chief Justice John Roberts and Associate Justice Samuel Alito is completing its third term. What does the Bush Court’s record show about the impact his successor’s appointments could have on the Supreme Court and the nation?

The Roberts Court’s first two terms were sharply polarized in virtually every case of consequence, and during the entire 2006-2007 term, fully one-third of all cases split 5-4. The hard-line bloc of Roberts, Alito, Antonin Scalia, and Clarence Thomas voted in near lock step, scuttling major precedents and signaling their determination to rewrite constitutional law wherever required to match conservative policy and political agendas. Justice Stephen Breyer tartly summed it up on the last decision day of the 2006-2007 term: “It is not often in the law that so few have so quickly changed so much.”

The term now coming to an end involved many fewer major constitutional controversies, which means many fewer opportunities for the sharp right turns that provoked Justice Breyer to speak out last year. Yet the ideological rough edges on the Court’s right-wing—so apparent during the previous two terms—remained in full view in this term’s constitutional cases.

The record is clear. The choice for the future is stark. If the litmus tests that controlled President Bush’s judicial selection process continue to screen the next president’s judicial nominees, the United States will be, by 2012 and far into the future, a greatly changed nation. Americans will lose fundamental legal protections that they have long taken for granted.

Major Constitutional Controversies of the 2007-2008 Term

The Court has so far decided two major constitutional cases this term, with a third (District of Columbia vs. Heller, a second amendment case) likely to come down tomorrow. The two previous cases amply justified the conclusion of a new book by Judge Richard Posner, that this is by far the most conservative Supreme Court since the early 1930s, with four of the five most conservative justices of the past 70 years now sitting.

  • Rule of law and executive power. In Boumediene v. Bush, the Court held that courts could not be stripped of their constitutional authority to entertain habeas corpus petitions from detainees held at Guantanamo Bay, Cuba. As columnist George F. Will observed after the decision, “No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion.”

But this elemental safeguard hangs by a thread. The vote to honor the Framers’ precise words was 5-4. The dissents were peppered with election-year sound-bites contrived for Fox News, such as Justice Antonin Scalia’s whopper that the Court’s decision “will almost certainly cause more Americans to be killed.”

  • Partisan disenfranchisement as “voter fraud.” In Crawford v. Marion City Election Board, the Court decided a constitutional voting rights case with partisan political consequences potentially as drastic as (and more lasting) than the Rehnquist Court’s December 2000 politically charged 5-4 Bush v. Gore decision. In Crawford, the Court upheld, 6-3, a state law requiring voters to present in-state government photo IDs. Enacted by a Republican-controlled legislature, the law was transparently aimed at depressing turnout among minority, lower-income, aging, and out-of-state student citizens.

Justice Stevens’ narrowly drawn plurality opinion, joined by Chief Justice Roberts and Justice Kennedy, preserves the possibility for future challenges to similar voter ID laws in limited circumstances. Justices Scalia, Thomas, and Alito would rule out any such challenges, regardless of the real-world impact of particular voter ID laws.

The post-Bush implications are clear. New appointments of the Scalia-Thomas-Alito persuasion will ensure legislatures a blank check to pile up barriers that disenfranchise vulnerable minorities and entrench office holders responsive to wealthier constituencies.

Closing courthouse doors for ordinary citizens

Over the three decades since William Rehnquist became Chief Justice, the Court has carved out vast regulatory vacuums by obstructing or neutralizing federal remedies, while simultaneously “preempting,” or invalidating, state remedies. Three major decisions of the current term reflected and accelerated this trend:

  • Windfall Profits For Exxon. By a vote of 5-3 (Justice Alito was recused) in Exxon Shipping Co. v. Baker, the Court cut $2 billion off of a jury award against Exxon.The Court imposed a new 1:1 ratio between compensatory and punitive damages, depriving maritime law trial judges and juries of their long-standing power and responsibility to determine the appropriate remedy for reckless corporate behavior. As pointed out by Justice Stevens in dissent, the Court’s opinion in Exxon is nakedly activist: Congress chose not to restrict the availability of punitive damages in this context, and not a single state court in the country has adopted the ratio chosen by the Court. At a time when gas prices and Exxon profits are at record highs, the majority chose to craft a new rule out of whole cloth that makes Exxon $2 billion richer, and takes this money from 32,000 commercial fishermen and native Alaskans who lost their livelihoods in the worst oil spill in U.S. history.
  • Rights without remedies. In Stoneridge v. Scientific Atlanta, the Court held, 5-3 (Justice Breyer was recused) that pension funds and other group and individual investors in companies decimated by fraudulent managers cannot recoup their losses from third parties who knowingly facilitated the fraud. Typically such collaborators—contractors, vendors, consultants—are the only culprits left with assets from which compensation is possible. As Justice Stevens observed in dissent, the decision thwarted the intent of Congress, which enacted the law at issue in the case “with the understanding that federal courts respected the principle that every wrong would have a remedy.”
  • Immunity for negligent marketers of medical devices. In Riegel v. Medtronic, the Court held that the 1976 federal Medical Device Act barred consumers injured by defective medical devices, or by negligent failures to warn of defects, from seeking compensation in state courts—even though the federal law nowhere specified any intent to invalidate such centuries-old common-law protections. Since federal law contains no provisions for individual recovery, the decision closes off all avenues for compensation.


Alternative Futures

A year ago, during the 2006-2007 term, the Roberts Court displayed extraordinary solicitude for corporate wrongdoers and hostility to individual access to justice when a 5-4 majority overturned a jury verdict awarding long-time Goodyear supervisor Lilly Ledbetter damages for decades of pay discrimination. This widely condemned decision required unequal pay claims to be brought within 6 months of the employer’s original discriminatory paycheck—even though employees typically learn of pay discrepancies only after many years, as was the case with Lilly Ledbetter.

In the current term, despite decisions such as Stoneridge and Riegel, the Court has not generally followed its Ledbetter approach of obstructing individuals’ suits against businesses. In particular, in widely noted workplace discrimination cases, the two new conservative justices broke ranks with their two more senior colleagues on the Court’s right-wing.

In two cases, Gomez-Perez v. Potter and CBOCS West v. Humphries, Justices Roberts and Alito stood alongside Justice Kennedy in support of well-established precedents, voting to reaffirm that retaliation against workers complaining of illegal job discrimination is itself a violation of antidiscrimination laws. In Meacham v. Knolls Atomic Power Laboratory, the Court, reaffirming a 2005 decision, imposed on employers seeking to avoid liability the burden of proving that lay-offs disproportionately affecting older workers were based on reasonable factors other than age.

It is commendable that, in these cases, Roberts and Alito followed through on the emphatic commitments they made in their confirmation hearings to take precedent seriously. But that should not obscure what is at stake for the Court’s future.

  • For the first two terms following their confirmation hearings, Roberts and Alito zigged to the right and repeatedly joined Scalia and Thomas in targeting major constitutional and statutory precedents. They voted to override local elected school boards’programs for minimizing racial resegregation, to spurn expert medical opinion about safe abortion procedure, and to scrap wetland preservation rules reaffirmed by every administration, Republican as well as Democrat, since the Clean Water Act was first enacted.
  • Election-year zags toward the center by these two conservatives are no guide to how they, much less new appointees of the same ideological stripe, will perform if the current four-justice bloc becomes a five, six. or seven-justice bloc securely in control of every case that comes before the Court.
  • Lacking any need for political caution or the discipline of having to persuade more moderate colleagues to prevail, the Court’s dominant ideological zealots will see every case as an opportunity to bend the Constitution and laws to match conservative policy and political agendas. Bush v. Gore, Crawford v. Marion City Election Board, and Ledbetter v. Goodyear will be the order of the day, every decision day.


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